Citation Nr: 21071197 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-06 315 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral pes planus, hallux valgus, metatarsalgia and plantar fasciitis is granted. REMANDED Entitlement to service connection for sinus condition is remanded. Entitlement to service connection for obstructive sleep apnea, to include secondary to sinus condition and/or tinnitus is remanded. Entitlement to service connection for degenerative joint disease of the cervical spine is remanded. FINDING OF FACT The Veteran's bilateral foot condition is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus, hallux valgus, metatarsalgia and plantar fasciitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1973 to January 1984. In January 2021, the Veteran testified at a Board hearing. The transcript is of record. The issues have been recharacterized to comport with the evidence of record. The issue of entitlement to service connection for sinus condition has been recharacterized as service connection of a respiratory disorder, to include sinusitis and vasomotor rhinitis in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for foot condition The Board concludes that the Veteran has a current bilateral foot condition of pes planus, hallux valgus and plantar fasciitis and received in-service treatment for complaints related to pain in his feet. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Thus, the issue at hand is whether the current foot conditions are related to service. On this question there are opinions in favor of and against the claim. The record includes a private evaluation and medical opinion from Dr. G.W., who reported diagnoses of bilateral pes planus, hallux valgus, metatarsalgia and plantar fasciitis. Dr. G.W. opined that it is at least as likely as not that the Veteran's foot conditions were incurred in or caused by military service. He reported that the Veteran's multiple foot conditions appear to have occurred during active duty as the medical history shows the Veteran's current foot condition was obtained in service in 1979. Dr. G.W. explained that flat foot and hallux conditions are known and common findings with military personnel as repetitive use, injury, recovery and reinjury cycle cause these conditions resulting in pain, fatigue, and decreased function. As such, Dr. G.W. concluded that the diagnosed foot conditions are a progression. The record also contains opinions from VA examiners in December 2012 and October 2015 providing negative nexus opinions for direct service connection; however, both examiners failed to provide adequate rationales. The December 2012 examiner cited speculation based on a lack of findings and the October 2015 examiner merely listed diagnoses noting they were after service. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, no weight is given to the opinions of the VA examiners. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). At the hearing, the Veteran provided credible testimony that he did not have flat feet prior to the military and he received treatment for his feet in service. He explained that during service he frequently jumped on and off the back of tanks and rappelled and did not have any injury to his feet after service. The record also includes buddy statements establishing that the Veteran did not have problems with his feet prior to service and has had problems ever since. The Board gives probative weight to the opinion of Dr. G.W. and the testimony of the Veteran. The medical opinion was conducted by a health care professional, who reviewed the record, conducted a physical examination, and provided an adequate rationale. Additionally, the Veteran provided competent testimony as to the presence of his symptoms from in-service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, as the record does not contain an adequate medical opinion against the Veteran's claim and the probative evidence of record supports a finding of service connection, the claim for entitlement to service connection for bilateral foot condition is granted. REASONS FOR REMAND 1. Entitlement to service connection for sinus condition The VA has a duty to assist, which includes providing a medical opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The April 2017 VA examiner reported diagnoses of chronic sinusitis and deviated nasal septum; however, the examiner opined that the Veteran does not have chronic sinusitis based on a normal white blood count with differential and negative sinus x-ray at the time. The examiner noted that the Veteran previously had episodes of sinusitis with an abnormal CT scan but there was no evidence of chronic sinusitis during active service as he had recurrent cold episodes. An addendum opinion was obtained in June 2017 for clarification with the examiner concluding there is no current active diagnosis of chronic sinusitis as the x-ray findings were normal. The record also includes a private evaluation finding a diagnosis of vasomotor rhinitis. The clinician noted the Veteran's reported exposure to inhalants during service and opined that it is certainly possible that previous exposures to strong inhalant odors and irritants have contributed to his ongoing vasomotor rhinitis. The Board finds this opinion inadequate as the clinician did not use the correct legal standard or provide a reasoned medical explanation. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In light of the expanded issue of service connection for a respiratory disability, claimed as sinusitis, under Clemons the Board finds that additional development is necessary. 23 Vet. App. 1. 2. Entitlement to service connection for obstructive sleep apnea, to include secondary to sinus condition and/or tinnitus The Veteran's entitlement to sleep apnea is inextricably intertwined with the entitlement to service connection for respiratory disorder claim on appeal. Therefore, the Board finds that the claim for obstructive sleep apnea must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Additionally, the Veteran raised the issue of entitlement to sleep apnea secondary to his service-connected tinnitus. A remand is necessary to obtain a medical opinion addressing secondary service connection. 3. Entitlement to service connection for degenerative joint disease of the cervical spine In December 2012 the VA examiner opined that it is less likely than not that the Veteran's neck condition incurred in or was caused by service. The examiner acknowledged the in-service complaints of neck pain in January 1979 and diagnosis of neck strain in May 1975 but noted that the separation examination did not report a neck diagnosis. The examiner stated that there were no complaints of neck pain again until March 2012 and concluded it would be speculative to find a continuous chronic ongoing condition of a neck complaint 30 years prior without some evidence in the medical record. Review of the medical evidence reveals a November 2011 MRI of the cervical spine showing moderate to severe multilevel neuroforaminal stenosis and slight retrolisthesis. As the evidence establishes findings related to neck pain prior to March 2012 the VA medical opinion is inadequate as it is based on a factually incomplete premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). The Veteran also provided an opinion from a private clinician in August 2017, who opined that it is more likely than not that the Veteran's neck injury may have initiated a process which developed into continued degenerative changes worsened by his occupation as a firefighter and the natural aging process. However, the clinician concluded that he could not say with absolute certainty that imaging findings are a direct correlation to an in-service event. The Board has considered the August 2017 opinion. However, the conclusion that it is more likely than not that his neck injury may have initiated a process which developed into degenerative changes does not meet the legal standard of more likely than not (50 percent or greater probability). As such, a remand is necessary to obtain a medical opinion. The matters are REMANDED for the following action: 1. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Request that the Veteran submit printed copies of any medical journal article that he seeks to have considered by VA in support of his claim. Specifically request that the Veteran provide the article referenced in his May 2021 Correspondence. 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's respiratory disorder, to include sinusitis and/or vasomotor rhinitis is related to his active service or is caused by or aggravated by military service. The examiner must consider and address the service treatment records and the Veteran's testimony that he received treatment for sinus headaches in April 1974 and March 1983. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is related to active service or is caused by or aggravated by military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that obstructive sleep apnea is proximately due to or the result of respiratory condition to include sinusitis and/or vasomotor rhinitis or service-connected tinnitus? (c.) If the answer to (b) is negative, is it at least as likely as not that the obstructive sleep apnea is aggravated (i.e., permanently, or temporarily worsened) by the respiratory condition to include sinusitis and/or vasomotor rhinitis or service-connected tinnitus? (d.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine is related to his active service or is caused by or aggravated by military service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case, and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.